Protection of Children and Prevention of Sexual Offences (Scotland) Bill: Stage 1
The next item of business is a debate on motion S2M-2353, in the name of Cathy Jamieson, on the Protection of Children and Prevention of Sexual Offences (Scotland) Bill.
There is no doubt that any offence that involves harm being done to a child is despicable, but it is hard to imagine anything more despicable than sexual offences that are committed against children. Such offences are particularly horrific and, as well as resulting in physical harm, they can inflict emotional damage that lasts a lifetime. Every time that parents or carers who are trying to help young victims to rebuild their lives after sexual abuse find out through the media that another offence has been reported, they experience renewed horror. Sadly, in those tragic situations in which children have been murdered by sex offenders, families often feel that they are the ones who are serving the life sentence, in that they are reminded of their loss every day.
I have met many children and young people who have survived abuse, as well as parents whose children have been abused or abused and murdered. I pay tribute to all of them for their courage, because that courage has helped us to learn lessons about the need to introduce legislation. In inviting the Parliament to agree to the general principles of the Protection of Children and Prevention of Sexual Offences (Scotland) Bill, I want every member to remember the experiences of those parents, to resolve to do everything that they can to ensure that we make it harder for the people who seek to abuse our children and to continue to put the protection of innocent children first.
I will say a few words about the bill's content. Section 1 deals with grooming. Members will be aware that an act of grooming occurs when an adult befriends a child and uses various methods to gain their trust so that they can persuade the child to get involved in a situation in which he or she can be sexually assaulted. Sometimes that grooming is done face to face—the adult might make friends with the child and spend time with them to win their confidence—but, increasingly, sex offenders make use of internet chat rooms to groom their victims so that they can carry out their despicable acts. We must protect our children from that threat, regardless of how it is intended that the offence will be committed.
It is important to record the fact that Scots law is already capable of dealing with many instances of so-called grooming behaviour. However, as we know that sex offenders are extremely adept at avoiding detection and skilled in creating situations and manipulating them to their advantage, we need to ensure that there are no gaps in the law that can be exploited by predatory sex offenders. Our proposed provisions mean that anyone who uses grooming techniques to take certain steps towards sexually assaulting a child will be committing a serious offence that carries a penalty of up to 10 years' imprisonment. Someone will be guilty of that offence before they have caused any physical harm and possibly even before they have met their intended victim. That is the new offence.
The bill goes even further than that in an effort to protect our children. Child protection professionals know of cases in which it is reasonable to suspect that someone is a risk, in that their behaviour is likely to lead to their sexually harming children or a particular child. I well recall that from my time in social work. Such people may not be committing an offence, but they may well be acting in a sexually inappropriate way—a way that suggests that the commission of a sexual offence might be just round the corner. For example, if there was evidence that an adult was encouraging a child to watch pornographic videos, although—depending on the circumstances—that might not amount to a criminal offence, it would undoubtedly give rise to genuine concern about that adult's motives and potential future behaviour. The fact that such a person is not committing a sexual offence cannot mean that we should simply wait until such an offence is committed before we intervene.
In such cases, once a chief constable has made an application, the courts will be able to impose a risk of sexual harm order, which will place restrictions on the adult concerned in order to protect a particular child—or children in general—from being sexually harmed by that adult. The restrictions could be used to prevent the adult from having contact with a particular child or from hanging around outside schools or sports centres. The court will be able to place any restriction on the adult that it considers to be necessary to protect the child or children from sexual harm. Again, we are taking action to use the law in a proactive way to prevent real and lasting damage from being done to our children.
Evidence from the Association of Scottish Police Superintendents, or possibly it was from the Association of Chief Police Officers in Scotland, raised the concern that, although a 15-year-old could be predatory on a younger child, the older child would not fall within the remit of the bill. I see nothing in the deputy minister's letter of 16 March to the Justice 1 Committee that deals with that issue.
A number of issues are involved, including the definitions of a child and an adult. We will come to those issues during the debate and when we examine the bill in more detail at stage 2. The important thing to recognise in that respect is that the Executive wants to put in place a number of measures that have the potential to complement the existing legislation and allow us to fill some of the gaps.
The bill will extend the use of sexual offences prevention orders so that children, and adults, can be better protected. At the moment, sexual offences prevention orders can be imposed on people who have previously been convicted of an offence with a sexual element and who continue to demonstrate sexually risky behaviour to children or to adults. The orders have been used successfully in Scotland, but the need to wait for further evidence of sexually risky behaviour after the conviction of the offender is clearly a limitation on their use. Under the new provisions in the bill, when the court is sentencing an offender for a sexual offence and it considers that the offender remains a risk of sexual harm, it will be able to impose a sexual offences prevention order there and then, without having to wait for the offender to demonstrate further risky behaviour.
Will the minister give way?
I am sorry, but I must move on.
The order will require the offender to stay away from the people or places that are associated with previous offending or, for example, from the internet if they used that method to access victims or unlawful pornography.
The time that remains to me is short, but I want to mention one further issue. As the Justice 1 Committee is aware, we propose to lodge amendments to the bill that will further extend the protection of our children from the risk of sexual harm. We propose that the current statutory offences in relation to indecent photographs of children under the age of 16 are extended so that they cover teenagers up to the age of 18.
Although we recognise that 16 and 17-year-olds have the right to carry on sexual relationships, we are also aware that at that age young people are vulnerable to exploitation. We are determined to do all that we can to protect our young people from those who would seek to abuse and exploit them.
For those reasons, we propose new offences in relation to purchasing sexual services from children under 18. That will mean that those who use or seek to use child prostitutes, or who otherwise seek to exploit young people by paying for or rewarding sexual acts, will be committing an offence. Those proposals are part of a package of measures that the Executive is putting in place to protect our children more generally. Our proposed amendments will also bring us into line with the United Nations Convention on the Rights of the Child and with the requirements of European law.
I commend the members of the Justice 1 Committee for their work in gathering evidence and getting to grips with some of the difficult issues in the bill. I know that we all share the objective of strengthening the law in accordance with the principles of fairness and justice that are associated with Scots law, while at the same time providing the strongest protection for our children. I believe that the bill will achieve that objective.
I move,
That the Parliament agrees to the general principles of the Protection of Children and Prevention of Sexual Offences (Scotland) Bill.
The Scottish National Party will support the general principles of the bill at decision time. A reading of the introduction to the bill leads me to say that it would be a very brave person who would seek to oppose the general principles of the bill.
The SNP will work hard to improve the bill as it progresses through the Parliament. We believe that the bill misses the mark in a number of important ways and we are not alone in thinking that that is the case. The Justice 1 Committee report highlighted many issues, and I hope that the Executive will work with the committee and individual members in dealing with them. I commend Hugh Henry, the Deputy Minister for Justice, for writing to the committee last night in response to its various requests for information, although he had to acknowledge that a number of points continue to be considered. That was a proper response from the minister—let us hope that that spirit of co-operation and collaboration will continue.
I share with members the alarm that I felt—I think that "alarm" is the correct word, and I believe that my committee colleagues felt the same—when officers of the national hi-tech crime unit gave us some insight into their work to protect children in internet chatrooms. I had never visited an internet chatroom before, so it was all a new experience to me.
The officer who showed us what goes on there was definitely not participating in a set-up. He went on to Google, asked for "teen chat" and picked the first chatroom that came up. We went into that chatroom with the officer who, for the purposes of the interaction, had the handle, if I recall correctly, of "Linda13" to suggest that he was female and 13 years old. He joined the online conversation, playing the role of the tethered goat for the internet jackals. Within about four minutes—shorter even than the speech that I am making—sexually explicit responses were being received. Clearly, there is an issue to be addressed—of that there is no question.
It was disappointing that the drafters of the bill did not ensure the earlier involvement of the national hi-tech crime unit. However, the unit is involved now; it is fully engaged and its contribution will be very valuable.
One of the things that looking at that chatroom showed us was that there is scope for harm in the grooming process itself, even if it goes no further. We heard that there are people out there whose gratification comes from the grooming process. I will be open and honest and say that I do not have a suggestion on how we legislate for that, but we should try, as the bill progresses, to find a way of doing so, because the bill does not quite go far enough. Furthermore, the police and others tell us that the bill's complexities may well severely limit its effectiveness.
In his recent letter, the deputy minister appeared to think that the committee's concerns about paedophiles operating in concert may have been misplaced. The English legislation, in many ways, is drafted in a superior way to the bill that is before us. The Sexual Offences Act 2003 says:
"A person commits an offence if … he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do".
The interoperation of these very cunning people is caught by the 2003 act, and our eventual act would be better if it included something similar. Conspiracy there might be, and there might well be societal offence, but legal recourse under the bill as drafted seems doubtful. The offence does not exist unless all the components exist. Even though there might be a conspiracy to undertake all the bits of the offence, unless they are committed together, I am doubtful that an offence would be committed under the bill.
I will talk briefly about the matter of age. Line 6 of page 1 of the bill says that an adult is
"A person aged 18 or over"
and line 7 says that a child is
"a person aged under 16".
However, the offences that are listed in the schedule to the bill can be committed at a range of ages. Offence 15, for example, relates to
"abduction of girl under 18 for purposes of unlawful intercourse".
The bill does not add a new offence unless the girl is under 16 and the offender is over 18. The opportunity to get defence from the bill is not provided by what is currently written in it.
The imposition of 18 as the age at which the offence can be committed risks excluding dangerous sexual predators who might, from the age of puberty, be committing the sort of behaviours that we are seeking to deal with. I am not saying that such people should go anywhere other than the children's panel, but we should try to amend the bill to provide the support that victims of young sexual predators might need.
I ask the minister to examine section 14 of the Sexual Offences Act 2003, which has much to commend it. Police forces south of the border believe that that section is of more use to them than section 15 of that act, which is similar to section 1 of our bill. I hope that the minister will pay close attention to that.
A number of times when a bill has been introduced, I have questioned its value or opposed it outright on the grounds that it is unnecessary or counterproductive, but I am happy to say that that is not the case today. I warmly welcome the principles of the bill, which is divided into three distinct elements.
Section 1 creates a new offence of meeting or travelling to meet a child with the intention of committing a criminal offence. Its introduction fills a crucial gap in Scots law, in that it covers the act of grooming with the intention to meet a child for an illegal sexual purpose that is not covered by either lewd, indecent and libidinous practice or fraud. I have argued for that measure for a long time and therefore very much welcome the fact that the Executive has changed its position and taken the decision to introduce the measures in section 1, despite having earlier deemed them unnecessary. I consider that to be a sign not of weakness, but of strength; it is indicative of a legislature that is growing in maturity, which can only be good for devolution.
However, although section 1 will raise awareness of the disturbing problem of sexual grooming as well as sending out a strong message that that kind of behaviour will not be tolerated—the value of those actions should not be underestimated—the section does not criminalise grooming per se, so it may not result in the prosecution of many of those who present a serious threat to our children. The prevalence of the threat is not in doubt, as the evidence of Rachel O'Connell and the national hi-tech crime unit all too alarmingly testified. In order that our children have every possible protection, I urge the minister to consider again the committee's recommendation that an offence of breach of the peace be included in the schedule. That would allow charges to be brought against a person who grooms a child via the internet when the communication is clearly of a sexual and inappropriate nature. Crucially, it would eliminate the necessity to prove that the person was travelling with intent to meet their victim.
I urge the minister to revisit other issues. First, on the requirement to have communicated on at least two occasions, evidence from the Law Society of Scotland, ACPOS and others points out that grooming could occur during one session. Secondly, on the onus of proof in respect of reasonable belief, I ask the minister to clarify whether she favours the onus of proof lying with the Crown or, as the committee favours, with the accused.
I welcome the fact that the minister has indicated that she will re-examine the issue of the offender's age. The majority of those who gave evidence favoured 16 as the minimum age for the offender. That was the position in my proposal for a member's bill, but, having listened to the evidence and arguments in favour of not specifying an age limit, I have been persuaded that that would be preferable, as it would cover the situation in which, for example, a 15-year-old groomed a 10 or 12-year-old.
Section 2 will introduce risk of sexual harm orders, the implementation of which will involve complex legal issues. The minister has addressed some of those issues, but I invite her to reconsider the following points. First, the standard of proof that will be required for an RSHO is the civil standard—that is, the balance of probabilities—as opposed to the higher criminal standard of beyond reasonable doubt. The rationale that lies behind that measure is, I believe, that the higher standard is used only with criminal offences, or when the accused might directly lose their liberty. However, that does not take into account the fact that a breach of the RSHO will lead to a loss of liberty as part of the process. In the light of the Constanda case, I urge the minister to reconsider that issue.
Secondly, I ask the minister to consider the test for interim RSHOs, which, given the potential consequences of such an order's imposition, should be the same as the test for full orders—an interim order should be given on the basis of necessity and not on the basis of the lesser test of its being just so to do. Thirdly, I would welcome clarification of exactly when and where RSHOs would be used. For example, I seek confirmation that they might be used following a not guilty or not proven verdict, as was suggested in evidence to the committee. Last, I would like more information about how the orders will be monitored.
There is limited time available, which is regrettable; as a result, it is not possible for me to cover the many issues that I would have liked to highlight, including those surrounding disclosure, admissibility of evidence and stigma. I will say merely that the bill has many worthwhile aspects, which have the potential to make a difference to the protection of children. I look forward to hearing the deputy minister's response to the issues that I have raised.
As I joined the Justice 1 Committee only recently, my comments will be largely from my viewpoint.
It is, first and foremost, in the interests of society to care for our children and keep them safe. Children are vulnerable individuals who are not yet fully developed and childhood is a fragile stage of life that is fundamental to personal development and to future society. Young people are a reflection of the previous generation, so to allow harm to come to them is self-harm and is criminal. Therefore, it is right that the issue dominates contemporary society. All members accept that the increased risk of sexual harm to children must be addressed and resolved, which is why members from all parties support the bill.
Internet chatrooms provide an ideal hunting ground for sexual predators and paedophiles. As technology has developed rapidly, no existing laws adequately prevent criminal activity from being committed on the internet. Unfortunately, sex criminals can manipulate the internet and use it to target children, which is potentially extremely damaging to the many children who use chatrooms and internet diaries. It is the Parliament's job to address social needs and to protect and care for young people consistently, in all matters, but especially in the matter that we are discussing.
As we have heard, children are constantly at risk from paedophiles on the internet. As Stewart Stevenson said, it is easy for predators to deceive children and convince them to meet. A need has been expressed for new legislation on the process of grooming, because the current legislation does not deal adequately with the problem and its effects. Too often, children are abused and sex predators go free to offend again, which is utterly unacceptable and demonstrates the need for new legislation. Adults often exhibit inappropriate behaviour towards children that causes law enforcement agencies to fear the possibility of predatory criminal tendencies in that person. However, under current law, nothing can be done until a crime has been committed and proven, by which time the harm will probably have been done. In this instance, the law as it stands does not allow us to protect our children.
Concern has been expressed from several quarters that the effects of section 1 will be minimal at best. The current stipulations may make conviction unlikely, as the offender must meet or plan to meet a child before a case can be made and the state must then prove intent to commit a crime. However, the point is that if just one child is protected or one paedophile is deterred from using the internet to hunt for victims, the bill will be a success, because one tragedy will have been averted.
My main concern, which is shared by other members, concerns the damage that a risk of sexual harm order could do to an innocent adult, especially as the level of evidence that will be required for such orders is significantly less than that which is required in standard criminal proceedings. We must, at all costs, ensure that a desire to protect our children does not cause us to infringe on the rights of other citizens. That aspect of the bill must be examined still more closely, with a strong focus on preserving the rights of individuals. As long as that is kept in mind, I can see no reason why a balance between the two cannot be reached.
The point that I am making is crucial. I am sure that, in our constituencies, all of us have heard a rumour being put around that someone is a paedophile. Often, of course, that rumour is not true but it could be damaging; it could destroy an innocent adult's life just as much as an innocent child's life can be ruined for ever by a paedophile.
The current law in Scotland does not recognise all the potential dangers to children. What is more, the law enforcement agencies have little room to work within the law while trying to protect children from paedophiles. Our job is to try to remedy the deficiencies of Scots law. The Protection of Children and Prevention of Sexual Offences (Scotland) Bill provides us with the opportunity to do that.
I acknowledge that the Justice 1 Committee—before my time on it—highlighted some concerns about the bill that will have to be addressed at a later stage. However, every member of the committee fully supports the intention behind the bill and its justifications. This bill is in everyone's interest, most of all that of the children of Scotland.
I welcome the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. Unfortunately, there are people who are using the opportunities that are offered by new technologies, including the internet, to entice children and vulnerable young people into situations that put them at risk of sexual harm. No reasonable person would shy away from the opportunity to protect all our children and I believe that the bill will give the police another tool to do just that. Any issues that I raise about the bill and how it should work in practice should be seen alongside my overall support for it.
The first element of the bill is the creation of a new offence of grooming. What is meant by the word "grooming" is perhaps not as clear as members of the committee first thought. However, the Executive has tried to clear up any doubt by explaining that the offence of grooming will have four elements: communication; meeting or travelling to meet; the relevant offence; and the under-16 age limit. Each of those elements assists us to recognise what is meant by grooming, but some issues remain. As has been mentioned, a number of witnesses argued that the requirement for communication to have taken place on two occasions is an unnecessary hurdle because, particularly in chatrooms, one long, continuous communication could be sufficient to gain a child's trust to the extent that they would agree to a meeting.
As Stewart Stevenson said, committee members had the opportunity to see the national hi-tech crime unit, which is based in the Scottish Drug Enforcement Agency, give a demonstration of a chatroom situation. That made a big impression on us all. Two things in particular struck me, the first of which was that the chat does not have to have a sexual content to make a reasonable person feel uncomfortable or suspicious that someone is not who they say they are. However, such chat can still pose a danger. I realise that the Executive has said that the chat does not have to have a sexual content in order for it to form the first element of the offence, but that could make it difficult to prove such a case when it comes to court.
Secondly, the chat that has a sexual content can, in itself, be damaging to the child and is a form of abuse. I understand that that sort of behaviour could be dealt with through a charge of breach of the peace. The concern about using that charge, however, is that it carries no recognition of the individual's sexual deviancy, which needs to be recognised if their future behaviour is to be addressed.
A number of issues have arisen around other elements of the bill. I do not have time to refer to them all, but I will comment on risk of sexual harm orders. I understand that the aim of the introduction of RSHOs is to prevent acts that would cause sexual harm to children. Having promoted the use of antisocial behaviour orders, I am signed up to the principle that there is a role for orders that prevent action. However, I want to ensure that we all realise that there is a significant difference between ASBOs and RSHOs, namely the stigma that is associated with sexual offences. I am concerned that that might make the police more reluctant to use RSHOs and that that would therefore reduce their effectiveness.
I support the bill. The important point, as with any bill, is how it will be implemented. Issues around resources and monitoring were raised at stage 1 and I know that we will return to them. There is particular concern that resources should be available for the support and treatment of perpetrators, and I am sure that we will return to that too. For now, I am content to give the bill my support.
This is tricky legislation to get right. The definition in section 1 uses the phrase "having met or communicated", but it seems to me that the debate is circling around electronic communications, such as the internet and mobile phones. I wonder whether it would have been appropriate to use the phrase "for example, but not necessarily" or "inter alia" in relation to such communication. The Solicitor General for Scotland is disagreeing, but we are not talking about somebody posting letters; we are talking about people using the electronic communications that exist nowadays, which make people much more vulnerable.
I note that the Justice 1 Committee would have liked the act of grooming—I use that term loosely, not in a legalistic sense—to be referred to in the bill. It is possible that someone could groom a young person via a chatroom but leave it at that. A second person could then come along, not necessarily from the same paedophile ring, and engage in the same behaviour with the young person. The contact that the young person has already had might make them vulnerable to making a journey to meet the second person. There are difficulties with not stating in the bill that grooming is in itself an offence. I understand that the committee's view was that a breach of the peace charge would not necessarily be sufficient to cover that, so there might be a gap in the legislation.
On the age issue, I note that the committee's report states:
"the Association of Scottish Police Superintendents pointed out that, as currently drafted, the legislation ‘suggests that grooming can only be downwards—an older person grooming a younger person'."
However, the ASPS suggests that
"it can be the other way round."
Any vulnerable person, including an adult, can be groomed. That is not recognised in the bill, so an opportunity has been lost. The bill could have referred to "a child or other vulnerable person". I appreciate that we are now too far down the road to put that in the bill, but the matter should be considered by the Executive.
I move on to the evidential difficulties with the standard of proof. I understand where the Executive is coming from; if I am correct, risk of sexual harm orders are rather like interdicts in that the standard of proof is the balance of probabilities, whereas in the case of the other criminal offences or breaches of RSHOs the standard of proof would be that the evidence was beyond reasonable doubt. The matter is difficult and I do not have solutions, but there are human rights issues in that Disclosure Scotland might be contacted. Somebody might not have committed a criminal offence but be on Disclosure Scotland's list, but the standard of proof for prohibiting them from an area would simply be based on the balance of probabilities. There are concerns about that. As I said, it is a difficult issue and I have not come down firmly on one side or the other about the standard of proof, although I know that because it is a civil matter the principle that operates in Scots law is that it should be on the balance of probabilities. There are also difficulties with the four tests that have to be met. It seems to me that issues are involved. I think that the committee saw the proposed legislation as being preventive legislation. Establishment of proof will be extremely difficult.
I have a final point to make. In a letter from the minister on the evidence test, she acknowledges that it may well be useful for protocols to be produced to reduce the risk of contamination of evidence—that is, contamination between the criminal offences and the civil offences. I do not know what that means. It would be useful, if there are to be successful prosecutions, for the Solicitor General for Scotland or the minister, who is now entering the chamber, to explain exactly what that means.
I call Pauline McNeill, who will be followed by Jeremy Purvis. I apologise. I call Annabel Goldie, who will be followed by Pauline McNeill.
Pauline McNeill's fright was nothing compared to mine.
It has been said that the Conservative party welcomes the general principles of the bill. In an increasingly complex technological age, the law must develop to meet new challenges. I read the bill before I read the Justice 1 Committee's report, which is a very good piece of work. My first realisation was that section 1 of the bill does not deal with what I would describe as questionable communications; rather, it defines an offence that is constituted by a series of events. Therefore, I was comforted by the committee's sensible observations in paragraphs 81 and 82 of its report, which recognise that gap.
A political decision is needed about striking at communications to a young person that would, if they were known about, cause concern to the young person's parent or guardian. The question is whether we should strike at any communications between an individual and a young person or only at communications that contain sexual allusions that are likely to corrupt and deprave. The first option is impractical, but the second is not. Most parents and guardians would be deeply concerned if a young person was receiving such material. Stewart Stevenson graphically described how quickly such communications can materialise through the internet. In such situations, a parent or guardian would—not unreasonably—think that criminal law would intervene before completion of the series of events that is required to satisfy section 1. We know that communication on at least two occasions, a meeting with the child with criminal intent and unreasonable belief that the child was over 16 would be required. There is an argument that the existing criminal law covers such communications; indeed, lewd and libidinous conduct has been invoked as a charge that has led to conviction and the committee's report refers to such an instance. However, the legitimate question that the Executive must answer is whether the common law is sufficiently robust. If it is not, statutory support would seem to be necessary.
The committee proposed that one option would be to include breach of the peace in the list of sexual offences in part 1 of the Sexual Offences Act 2003 where the nature or circumstances of the offence are clearly sexual. A number of members have referred to that. I agree that the option is worth considering, but my concern is that there may be difficulty in that the basic common-law crime of breach of the peace was not intended to cover such situations. It could be more difficult to prove the charge in the context of a sexual communication and to secure a conviction. Members are interested in creating law that allows the Crown a reasonable prospect of conviction when prosecuting cases.
I have a suggestion to make, which is that it may be possible to draft a simple statutory offence that is constituted by a person's sending to a young person a communication that contains material that is likely to corrupt or deprave. That would allow objective assessment of the circumstances by the courts and it would present simpler cases for prosecutions to prove. The obvious attraction is that, whether by common law or statute, such communications would constitute criminal activity, which would mean that on conviction the offender could be placed on the sexual offenders register and the offence would be constituted without there having been a meeting or series of events.
I turn briefly to the serious offence that section 1 of the bill will create. My reaction is that it will be difficult for the Crown to cover all the steps that are envisaged by section 1, which is all the more reason why we should consider the communication stage of contact.
On risk of sexual harm orders, much attention has already been focused on the onus of proof and the balance of evidence and on whether the criminal or civil evidence test be used; the clear intention is that civil procedure be used. The committee has signalled concerns about the appropriateness of civil procedure; I echo those concerns.
I will pose some questions about the procedure for an RSHO and the evidence requirement. If I read the section correctly, there is no provision for serving the application on the respondent and it creates no right of response to, or justifies appearance by, the respondent. Is the application to be in the form of an initial writ, for example? Will that mean that it will then follow standard sheriff court procedure? It seems to me that if there are parties with malign intent who are anxious to discredit an individual, they could present fictitious information that the respondent would be powerless to question. Under the bill as it stands, the respondent's rights are restricted to appeal of the order. If section 2 does not require appearance by the defenders, will cases proceed as undefended civil processes and could the chief constable produce his evidence by affidavit? Those are important questions because the chief constable has to produce evidence that on at least two occasions the individual has—to quote section 2(1)(a)—"done an act". Does the chief constable simply say by affidavit that he is satisfied that on two occasions the individual has "done an act"? Is that to be the evidence? If it is, it is very frail.
I have genuine concerns about what section 2 of the bill means in terms of the technicalities of production of evidence and the rights of respondents to question legitimately what evidence might amount to.
I begin by thanking the Justice 1 Committee, the clerks, the bill team and the Deputy Minister for Justice for the work that they have all done in putting together a constructive report.
As other members have said, there are few priorities higher than to protect children from harm. We already have good law in Scotland that can deal with prosecuting crime against children and the bill is designed to be an addition to that law, to plug its gaps and to update it to take account of circumstances that we face in the 21st century. The Justice 1 Committee believes that, as it stands, the bill needs to be changed, but we support the general principles.
It is important to note that the new offence that will be created by section 1 of the bill is designed to criminalise preparation for commission of a more serious crime. In itself, the crime is committed where it can be inferred that one of a number of sexual offences would be committed by an adult's travelling to meet a child. It is very important to know that that is the act that must be criminalised.
The committee has made it clear that it thinks that the earlier aspect of that criminal behaviour needs to be addressed. It is important to note that the offence, which is not termed as grooming—I suggest that it is grooming-plus—is the more important of the offences, although there is a gap that needs to be plugged.
One of the most striking aspects of the evidence on exploitation of children on the internet is that it is more colossal than any of us imagined. The nature of the internet is such that it invites children to give out a great deal of personal information. If members ever use MSN Messenger they will see that it asks children to say who they are and where they gather. That information is on the internet and dangerous adults are using it to exploit children in ways that we do not want to imagine.
It is important to note that the national hi-tech crime unit that was recently formed under the Scottish Drug Enforcement Agency has three officers who are authorised to go on the internet and pose as children to get the required intelligence. The most important thing that we would all like to know is that we have the resources to intercept adults before a crime is committed. It is vital that we get resources to that unit as well as ensure that the law is right.
The committee is concerned that the bill catches only part of the criminal behaviour, so it is important for us to consider how to properly criminalise inappropriate sexual conduct, or the actual grooming of a child. Our solution is to ask the Executive to consider whether an adult who is prosecuted under the breach of the peace law—which is the law that is currently used to prosecute such adults—could be clearly specified as an offender on the sex offenders register. As a result of the Cosgrove report, sheriffs and judges have the discretion to use the existing law where there is a sexual element to a crime. There has been no response from the minister on that, so I wonder what the initial view is.
You have one minute.
The age question was a very difficult issue for the committee. As it stands, the bill will apply to persons aged 18 and over. The committee recommended that the bill should not refer to any age in order simply that the normal rules of the criminal justice system would apply. Our problem was that we received too much evidence that signs of predatory behaviour can start much earlier, during a person's teenage years. We would not want the bill to fail to catch a case in which a 17-year-old was grooming a 13-year-old. Our suggestion is that the bill should not specify any age.
In conclusion, the risk of sexual harm order is a far-reaching provision, which the committee has said it will support only with caution. I am running out of time, but I want to make this point. Know this: when we accept such a provision by agreeing to the general principles, we will be agreeing to a major shift in policy on how we deal with criminal behaviour, because RSHOs will be dealt with in the civil courts. I want changes to the bill and I want clarity about which cases we are trying to capture by the provision. I want to know how chief constables will use the power.
You must wind up now, Ms McNeill.
As Mary Mulligan said, it is not helpful to compare an RSHO with an ASBO, given the massive stigma that will be attached to the former. We must get right the balance between protecting the rights and safety of children and the rights of the accused.
As my colleague Jamie Stone said, the Liberal Democrats will support the general principles of the bill. In my view, the sober nature of this afternoon's debate reflects the seriousness of the issue.
I commend the Executive, the Justice 1 Committee and members from all parties for their hard work, but I wish to raise some issues about the bill that cause me general unease. I feel that my unease is also reflected in some of the evidence that was provided to the Justice 1 Committee during its consideration of the bill's general principles. The committee seeks solutions during later stages to problems that it foresees for when the legislation is implemented. The committee has sought to ensure that the bill provides legislative protection for those whom it seeks to protect without inadvertently casting the net wider. That is the scope within which I will address my brief remarks this afternoon.
In its submission to MSPs, the Law Society of Scotland asserts:
"there are a range of common law and statutory offences, which may currently be used to prosecute … those … who seek to groom children … with the … intention of committing a sexual offence".
However, as we have heard, the common law may not offer sufficient protection in a small number of incidents. The number of such incidents is small as, thankfully, sexual offences are rare. However, the Law Society's submission states:
"It is important that those adults who seek to groom children and meet or travel to meet them with the clear intention of committing a sexual offence can be prosecuted, before any sexual offence takes place."
I emphasise the need for clarity on two elements in that statement: adults and clear intention.
During its detailed consideration of the bill, the committee rightly gave thought to how the bill's complexity could impact on the number of prosecutions, and to the concern that some people might be inadvertently criminalised or, rather, stigmatised by being the subject of a risk of sexual harm order. I will deal with those points in turn but, before doing so, I stress that I believe that criminal law should always be measured, considered and commensurate with the problem that it seeks to solve. The bill should not be rushed. We have to live with the negative consequences of bad law, so we should take our time to get it right.
On the age definition that should apply both to offenders and to victims, the evidence that Children in Scotland provided to the committee is valuable. I know that the Executive and the committee will consider the issue in more detail, but I am concerned that, unless we get a resolution, we might end up with legislation that is inconsistent with the approach in England and Wales—which, in itself, would be an unwelcome development—and, more important, which lacks clarity in how it applies to 16 and 17-year-olds. The bill also lacks clarity about the role of the hearings system.
The age definition is a complex issue. Barnardo's and others indicated that offenders can be young. The committee considered an age differential as a possible criterion but—wisely, I believe—rejected that. However, the committee's recommendation that the bill specify no age limit for offenders leaves some uncertainty. I stress that I am not suggesting that the committee and the Executive will not return to the issue, but the evidence that the committee received was important. I am still concerned that the bill might inadvertently criminalise absolutely normal behaviour among some teenagers. If we get this wrong, Parliament will send out an unwelcome signal that we do not understand young people.
Children in Scotland highlighted examples of a 16-year-old boy having a consensual relationship with a 15-year-old girl, which could be criminalised, as well as legitimate boyfriend-girlfriend meetings and contacts by phone, text, internet or some other means. It is important to ensure that there is a clear distinction within the law, so that even if there is behaviour of which some members would disapprove, it is not criminal.
There is one other issue that needs further attention—the teaching of sexual health or sex education. Concerns have been raised that civil, not criminal, orders can use hearsay evidence without corroboration and that, as such, there is arguably an insufficiently high threshold of evidence to safeguard the rights of the accused. I appreciate the Executive's reluctance to have block exemptions with regard to the teaching of sex education and instead its desire to provide robust guidance to ensure that those who are doing good work are not inadvertently affected by the orders. However, rather than exclude teachers or those who work within the formal curriculum for sex education, the guidance should be extended to include voluntary sector and peer-to-peer education.
The proposed offences are complex. The bill stands, but there is a requirement to prove four separate elements in order to secure a conviction, and the committee found that it might be particularly resource intensive for the police to investigate and obtain the evidence that would be necessary to bring a charge, and that it might also present difficulties for the Crown to prove a charge in court.
Although we support the general principles of the bill, the committee has much work to do. I wish committee members well in their scrutiny at stage 2.
I welcome the bill. The legislation is overdue and the SNP will certainly support the bill's general principles this evening. Although other members have covered many of the points that I wish to cover, I do not think that it does any harm to cover them again, so I make no apology for doing so.
My understanding was that the bill was intended to deal with the problem of grooming, so I was quite disappointed when I read the committee report and found that grooming, in and of itself, would not be covered. I agree with committee members' concerns about the omission from the bill of specific reference to grooming. I am equally disappointed by the minister's refusal thus far to change her mind on that point.
In paragraph 17 of its report, the committee states that it is
"extremely concerned about the response from the Minister".
That is a pertinent comment, because the failure to criminalise grooming per se is, I believe, a mistake. To target the actions subsequent to grooming, although it is a welcome step in the right direction, does not go far enough. We must outlaw the act of grooming, not only the subsequent actions. As the minister said in her opening remarks, the issue is not just about the physical damage that can be done to children when such acts take place; even if a physical act does not take place, emotional and psychological damage can often occur before any meeting or any sexual act takes place.
Although I understand the difficulties in legislating in this area and in properly defining how we deal with offences, I fail to understand—as I believe most people will fail to understand—the Executive's reticence on the matter. The act of grooming children in and of itself cannot have an innocent purpose and should therefore be deemed to be an offence, without the need to travel, the intention to travel or the possession of condoms while travelling being used as evidence. The committee was quite correct to point out that section 1 of the bill will make at best only a marginal difference in tackling the threat from paedophiles.
I turn to age limits. I agree with the Executive and with the committee on the definition of a child as a person under 16, but I do not agree with the Executive on the definition in section 1 of who can commit the offence—it seems entirely likely that a person between the ages of 16 and 18 could commit such an offence. Unfortunately, there have been cases of persons in that age range and below who have been involved in such activity. I believe that, at the very least, the age limit for an alleged offender should be lowered from 18 to 16. However, the committee's suggestion that no age limit be set and that it be left to the discretion of the Crown Office and other agencies to decide on the correct action to take in each case is attractive. That would provide maximum flexibility in dealing with young people who are alleged to have committed such offences, but would not set artificial age barriers to prosecuting someone who is young, if their acts or behaviour are clearly shown to have been predatory.
On the number of times that a person has to communicate with a child before an offence is committed, I believe that the Executive has got that wrong. I whole-heartedly agree with the committee and other members who have stated that it is the content and context of communications that is the key to proving the offence, rather than the number of communications. That loophole must be closed to ensure that no child is endangered as a result of a technicality about the number, as opposed to the intent of, communications.
Frankly, I have little sympathy for the argument that the Executive seems to suggest, which is that it does not want the offence to catch people who engaged in grooming activity once but decided to take no further action. The minister is quoted as suggesting that in paragraph 68 of the committee's report. Does that mean that if someone engages in grooming with different children, but never more than once with each child, they should not be prosecuted? Is the emotional and psychological damage that can be caused by grooming in and of itself not reason enough for prosecution? The question is at the heart of why I believe that grooming, and not only the subsequent actions, should be an offence. Another reason for my belief in making grooming itself the offence is that the person who grooms may not be the person who travels. Therefore, the section 1 offence would seem not to apply to such people.
I certainly support the Executive's position on opposing a blanket marriage exemption; it made very good points to the committee on that.
In conclusion, all parts of the activity should be caught by the bill, which is about protecting children. That means that grooming, travelling or even persuading a child to travel should all be covered. Although I support the intent of the bill and its general principles, I believe that it will need to be amended at stage 2 if it is to be an effective tool against people in our society who intend to harm children in this way.
I welcome the debate on the general principles of the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. Like members who have spoken already, I believe that all children and young people have a right to be protected from sexual harm. I therefore support the overall principle of the bill, which is to better protect children and young people from sex offenders.
The bill is warmly welcomed as it will strengthen the measures that are available to protect children and young people from sexual harm and abuse. The Executive and the committee are to be applauded for their dedication and commitment in undertaking such vital work.
However, I am concerned that we should listen to some of the advice that we have received from other people in Scotland who have highlighted in briefings to MSPs concerns that I believe the committee and the Executive should be urged to take on board. They should give further consideration to the points that are raised.
I will focus on age, which Pauline McNeill mentioned. The bill defines an adult, or offender, as a person who is 18 or over and it defines a child, or victim, as being a person under 16. I believe that further consideration must be given to the complex issue of the age of the adult, or offender, as defined in the bill. Clarity is required about the position of 16 and 17-year-olds and consideration must be given to the role of the children's hearings system in relation to the new offence that is set out in section 1 of the bill. On the recommendations on the age of the offender in the Justice 1 Committee's stage 1 report, I believe that careful consideration must be given to its recommendation that no age be specified in respect of the section 1 offence.
The children's hearings system should remain central to decisions for under-16s and people up to the age of 18 who are on supervision orders. The children's reporter should be consulted to determine the route in the case of a young person who is accused of committing the offence. An amendment to the Children (Scotland) Act 1995 to permit, in the case of a person who is not already on supervision, referral to the children's hearings system within six months of his or her 18th birthday should be supported. I also believe that any order must be accompanied by a package of support or treatment.
The bill currently defines the age of an adult, or the offender, as being 18 or over. There has been much discussion of whether the age of the offender in relation to the offence at section 1 should be lowered to 16. Analysis of the responses to the initial consultation on the proposals shows that 69 per cent of respondents thought that 16 should be defined as the age at which one could be charged with an offence. The most common argument for that was that doing so would be consistent with the age of sexual consent for females in Scotland. It is also argued that there is evidence that young people below the age of 18 display the type of sexually inappropriate behaviour or grooming behaviour that is defined in the bill. To set the age limit at 16 would clarify the position of 16 and 17-year-olds in relation to the new offence.
I understand that people have argued in submissions to the committee that they are particularly wary of any measure that could lead to criminalisation of young adolescents; for example, a 16-year-old boy could be in a consensual relationship with a 15-year-old girl. It is therefore important that we draw a distinction between legitimate boyfriend-girlfriend meetings and what could be criminalised.
Moreover, it is felt by many people that in Scotland, 16 and 17-year-olds should not be dealt with through the adult criminal system. Inconsistencies in the definition of a child in Scots law have also been highlighted. It is recognised that defining an adult as a person of 18 or over is in line with the United Nations Convention on the Rights of the Child and with the Protection of Children (Scotland) Act 2003. Young people up to the age of 18 should be protected from sexual harm.
Finally, given the definition of an adult in the bill, it is unclear what the implications are for 16 and 17-year-olds. Currently, they are defined neither as victims nor offenders. Clarity is required where a young person under the age of 18 commits the offence that is set out in section 1. It must be made explicit.
All of us in the chamber recognise the importance of getting child protection right. The minister used the word "despicable" earlier in the debate to describe the sexual abuse of children. I am sure that none of us would disagree with that description.
I will raise two areas of concern that have been touched on by other members: the impact of the bill on sex education; and its potential impact on non-abusive consensual behaviour between people who are over the age of consent.
Sensitivities around sex education are such that a piece of legislation need not be used, or even be usable, against teachers to have an impact on the delivery of sex education. Section 28 showed us that clearly. It was never once used in court; according to senior legal figures, it never could have been successfully used in court. However, it was used in school boards, parent-teacher associations, the media and elsewhere as a weapon of fear by those whose agenda was one of bigotry and prejudice. Given the importance that the Executive has attached to the sexual health strategy, it is essential that it takes seriously the possibility that risk of sexual harm orders could be used in the same way as section 28 by those who oppose meaningful and comprehensive sex education.
I emphasise that I am suggesting not that such orders will themselves be used against teachers, youth workers or others who provide education and advice, but that those who seek to undermine or detract from sex education or to cause fear among professionals could use the fear of such orders to deter professionals from continuing in their work or from volunteering for organisations and so on. I commend the written evidence from East Lothian Council, which suggested that the provision of education and advice, rather than categories of individuals such as teachers or youth workers, could be ruled out. That would send the right message about the importance of sex education while addressing the Executive's concern about the dangers of excluding categories of people from the offence in section 1.
The Executive has made clear its intention to lodge amendments at stage 2 to make it illegal to posess certain images of people aged under 18, as opposed to under 16 as the bill stands. That is highly problematic. It risks criminalising young people who are over the age of consent, their friends or their sexual partners for possessing images that have been created with consent for completely harmless purposes. The suggestion that the Justice 1 Committee heard that married couples and civil partners should be exempted reinforces the notion that all other sexual relationships are in some way inferior or are to be frowned on, and that the law should be less tolerant of people who have a sex life without a piece of paper from the state.
Similar concerns exist over the perfectly innocent use of chat rooms, websites, weblogs and online profiles by people who have no abusive intentions or history and who merely use such facilities either as part of their sex lives or to communicate with other consenting adults. I ask the minister whether it is possible to ensure that consent is referred to in the Executive's forthcoming amendments to ensure that young people who are over the age of consent are able fully to exercise their right to consent.
The protection of children from abuse is a serious matter—it can be a deadly serious matter—but if the Executive wants to ensure that its measures to address the need for protection are effective and gain the credibility that they need, it must take care to ensure that the provisions in the bill are relevant to real people's lives in the modern age, are not open to misuse or misunderstanding and focus on the real problem. I would not be able to support the bill if it was presented in this form at stage 3. However, I give my support to it at stage 1 in the hope that it will be improved significantly before we get to stage 3.
We move to winding-up speeches and I call Jamie Stone. Mr Stone, you have a tight four minutes.
I rise to speak for the second time this afternoon. The minister rightly pointed to the emotional damage that is done to children and, correctly, flagged up the courage of the parents of children who are involved in incidents of sexual abuse or, indeed, murder.
In a thoroughly heavyweight contribution, Stewart Stevenson very nicely drew out the nature of the problem. His description of the fake person—Linda, aged 13—and of how people went online as quickly as they did should be a lesson to us all. That point was well made. He also made the point that gratification can be gained from the grooming process. That, too, we shall bear in mind as we move to stage 2.
I thank Margaret Mitchell both for her warm welcome for the bill and for the fact that she echoed my remarks about the possible impact of risk of sexual harm orders on innocent people. I will return to that subject in due course.
Mary Mulligan, correctly, referred to grooming. In a thoughtful contribution, Annabel Goldie, who is still in the chamber, talked about the writ and the technicalities of the production of evidence. I am no legal expert, but I think that what she said was crucial. We must get the mechanics of the bill right. If we do not, we could enact fundamentally flawed legislation. Let us face it—on an issue as grave as this, the legislation must be copper-bottomed and cast iron. It has to work all the way.
There was a good speech from Pauline McNeill, and Jeremy Purvis's reference to the age issue was absolutely correct. There were also thoughtful contributions from Stewart Maxwell, Helen Eadie and Patrick Harvie.
We have just heard Patrick Harvie's speech. I am not quite sure that I follow his argument about sex education and the ramifications of the risk of sexual harm orders; however, I am sure that we will hear more from him at stages 2 and 3. I have been impressed by my colleagues on the Justice 1 Committee, who are all more able than I am, and I am sure that we will all have open minds. Mindful of what I have just said about it being crucial that we get the legislation right, we should consider every point, including that which Patrick Harvie made. Nevertheless, he will have to do some slight legwork to persuade me of the connection that he referred to. I hope that all right-thinking people will see the importance of sex education; however, if he has an argument, we will consider it.
I am keeping tight to time, as you requested, Presiding Officer.
I am fortunate because my childhood was a happy one. Those of us who had none of the experiences that we have heard about have everything to be grateful for. We could all, however, put ourselves in the position of people to whom something happened that blighted their life and left them with a memory of the experience. Constituents in their 60s and 70s who were abused as children have come to see me, and their stories are harrowing. I get down and thank the good Lord that what happened to them did not happen to me and does not happen often to other children—nonetheless, it does happen.
Members have talked about the accidental blackening of an innocent person's name, and there is a risk that that could happen. As a child, I was warned not to get into a stranger's car—as kids, we were all told not to do that. When I was a kid, we did not have a car but, eventually, we had a van, when my father had made enough of a certain dairy substance that I am not allowed to mention in the chamber.
Cheese!
I remember, as a wee boy, sitting in our knackered—is that parliamentary language? Perhaps not. I remember sitting in our battered old van when, suddenly and to my alarm, a strange man got in and started the engine. I screamed with fright. He was a man from Tain—where the minister's cousin and I live—who was just moving the van while my dad was in the shop, but I was really scared. How terribly easy it would be to blacken the name of somebody who is completely innocent in a way that would mark them for the rest of their life. Nevertheless, as I said in my earlier speech, I believe that we can strike the right balance.
In concluding my speech, I thank the clerks and my colleagues.
The debate is predicated—as, indeed, is the legislation—on the basic concept that the abuse and exploitation of children for sexual purposes are abhorrent to every right-thinking person. It is also predicated on the fact that technology has not come with benefits alone. There has to be some recognition of that through a change in the legislation.
It has become evident in this afternoon's debate that the bill is defective in certain aspects and requires to be looked at. I really think that we should go for the simple solution. Why is grooming not being made an offence per se? Although I accept that there are evidential difficulties in that respect, we need to exercise some common sense. It is quite clear that, if a 40-year-old invites a 14-year-old girl, in full knowledge of her age, to visit him in his flat when no one else is present, there could be a problem. The Executive has to reconsider the matter. It is simply not sufficient to wait until things have gone that little bit further down the road; attempting to set up the contact should be the offence.
I found Stewart Stevenson's speech quite disturbing. It is not the first time that I have heard about what happens on some internet sites and, in the circumstances, the Executive would be advised to take further evidence from the national hi-tech crime unit before it lodges any final amendments to the bill. I also note that the Scottish Police Federation believes that grooming in itself should be an offence.
If the Executive is not prepared to take that route, perhaps the answer is the common-law approach. For example, the type of behaviour that I have described could constitute a breach of the peace. The introduction of a breach of the peace offence similar to that for sectarian aggravation might also deal with Mary Mulligan's concern that, as with any breach of the peace, the record of conviction would not mention that the offence had a sexual element.
The committee report expressed concerns about setting the age limit at 18. I think, frankly, that such a limit is a nonsense. After all, people mature much earlier nowadays and, as Christine Grahame pointed out, a 15-year-old could be in a position to entice a 14-year-old. We are not looking at the matter carefully enough—I certainly hope that the Executive takes these points on board.
I am also concerned about RSHOs. Of course, there are evidential difficulties in everything that we are attempting to do in this bill; however, there must be a presumption of innocence. I realise that RSHOs are not a criminal sanction, but an individual could be profoundly affected by being wrongly accused of such an offence. If there is such a narrow degree of difference between the evidence that is necessary to obtain an RSHO and that which is necessary to secure a successful criminal prosecution, we should take the route of criminal prosecution if there is any possibility that a child is at risk.
I can see what the Executive is trying to do, but I think that an awful lot of tidying up has to be done before the bill can be enacted.
The debate has shown that, although the bill is relatively short, it impacts on a wide and complex range of issues. As the stage 1 report points out, the committee broadly supports the bill's intent; however, we have major concerns about its ability to deliver the level of protection that we all want. Indeed, there are even concerns about the bill's ability to deliver its own provisions. I am concerned that the procedures for granting and the standard of proof attached to RSHOs could result in people being wrongly accused of acting in an inappropriate way towards children. Such a stigma can mark someone for life.
I agree with Mary Mulligan's point that there is a lack of clarity about grooming; I also agree with the many speakers who said that we need a specific grooming offence per se.
Pauline McNeill referred to the evidence of Dr Rachel O'Connell when she spoke about the information that children are encouraged to provide online. Dr O'Connell's evidence was most persuasive. She has conducted extensive research into the structure and organisation of paedophile activity on the internet. The committee considered that the lack of measures to deal with what we have come to know as cybersexploitation is a serious gap in the protection of children. That was alluded to by Margaret Mitchell, Annabel Goldie and, of course, more graphically, Stewart Stevenson.
We heard from Margaret Mitchell and others about the possibility of making changes to breach of the peace legislation and incorporating breach of the peace in the list of sexual offences in part 1 of the Sexual Offences Act 2003. That would allow anyone convicted of a breach of the peace offence that is of a clear, sexual nature to be incorporated in the list of sexual offenders. The committee strongly recommends that the Executive introduce measures to tackle grooming—which is in itself damaging to children—head on.
It is difficult to prove an offence under section 1 of the bill and it might prove exceedingly hard to bring together the four strands of behaviour that constitute the proposed offence, not least because of the activities of paedophile rings. In her opening speech, Cathy Jamieson referred to the ability of paedophiles to create and manipulate situations and said that it was important that we leave no loopholes, but there are loopholes all over the bill. The committee was correct to say that we should not insist on proving that there were two previous communications or meetings with the victim in order to make the offence stand up. We see no good reason for not reducing the number of communications to one.
The bill states that the offence would be complete only once the adult travelled with the intention of meeting the child to carry out an act that would otherwise be a relevant offence. However, in the bill as drafted, the offence would not be complete if the child were to travel to meet the adult, even if the adult prearranged the meeting or paid the child's expenses to get to the meeting.
There is also the question of resources. I was encouraged by the deputy minister's response and I look forward to his amendments because, as the bill stands, one could drive a coach and horses through it.
The age of the offender was touched on by many. I will not go through all the remarks, but Jeremy Purvis and Helen Eadie raised the situation of a 16-year-old boy in a consensual relationship with a 15-year-old girl. Such a relationship already constitutes a criminal offence. My question is about the discretion that can be applied by the prosecuting authorities.
Although the SNP supports the general principles of the bill—who could not?—we have a number of reservations. We are disappointed that the Executive has not produced its promised amendments, although we have sympathy for the reasons behind that. We have serious doubts about the effectiveness of the proposals as they stand and we question whether the bill will achieve its stated objectives in its present form. The bill can be made to work and can make a difference, but only if the Executive properly addresses the many serious issues that were raised in the Justice 1 Committee's report.
The encouraging part of today's debate was the will that exists across Parliament for further measures to be taken to give added protection to young people, and to children in particular.
In her opening remarks, the minister graphically and eloquently stated the case for why we need to act. The point was made in a number of contributions that the type of person with whom we are dealing is not just malign in their motivations, not just malicious in their intentions, but can be extremely unscrupulous and devious in the way in which they act in order to manipulate certain circumstances. They are intent on harming children and they will go to any lengths to carry out that harm.
It is right that we should update our law to reflect the changes that take place in society and which happen around us, but it would be foolish to minimise some of the difficulties with which the advent of the internet has presented us. Although it would be noble to have the intention of trying to do as much as we could, the technology and the way in which it can be used are moving on at speed, as members have clearly indicated. However, that is no excuse for us not to try to do everything that we can to introduce sufficient protection.
A number of concerns have been raised during the debate. Although I will not have time to deal with each of them, they will all be considered carefully. I have already said that we will reflect further on a number of issues, because we need to get the legislation right. Although it would be right for us to reflect on the points that have been made and perhaps shift in an effort to improve the bill, it would also be right for us to take a firm view and to resist proposals that would have poor or adverse legal implications, even if they were made with the best of intentions. In seeking to help children, the last thing that we want to do is to create more problems further down the line, so we need to proceed with caution.
Stewart Stevenson talked about some of the benefits of English legislation in comparison with Scottish legislation, but some of those benefits are implied under Scots law; we do not have to be as specific as English law must be. He referred to section 14 of the Sexual Offences Act 2003, but that provision is ancillary to a number of sexual offences in England and Wales and, as it stands, it would not work in Scotland. That said, it is proper that we consider further whether there is any equivalence that might be helpful.
Margaret Mitchell made a number of points that were echoed by other members. She talked about the age of the victim and asked for clarification of whether the burden of proof should lie with the Crown or the accused. We have consulted with the Crown Office and Procurator Fiscal Service and it is content that the burden of proof should rest with the Crown, but we will consider that further to determine whether any improvements can be made.
Another issue that was mentioned by a number of speakers, including Mary Mulligan, was breach of the peace and the question whether that should become an offence that could trigger inclusion in the sex offenders register. However, the fact that someone has been involved in a breach of the peace scenario could already trigger inclusion in the register. Under paragraph 60 of schedule 3 to the Sexual Offences Act 2003, the judge can direct that a person who has been convicted of any offence should be subject to the sex offenders registration scheme if
"there was a significant sexual aspect to the offender's behaviour in committing the offence."
Other issues to do with the use of breach of the peace in common law have been raised. There are circumstances in which breach of the peace can lead to action. We are talking not about replacing breach of the peace, but about adding to it and still using it when it is necessary to do so.
A number of speakers dealt with RSHOs, about which I think there are some misconceptions. It is right to worry about the potential for stigmatisation, but I do not accept Patrick Harvie's arguments, which apply to different circumstances. The proposal in the bill is highly specific. It is right for us to consider giving protection to children to prevent certain acts from happening. I would argue that action is imperative when a child or a group of children are at imminent risk.
Issues have been raised about the difference between full and interim risk of sexual harm orders. In some cases, there will be no time to go through the normal process for obtaining a full order. In those cases, it will be absolutely essential that action is taken to protect the child by means of an interim order. In either case, the sheriff must be satisfied that there is a prima facie case for making the order.
Annabel Goldie raised—
Briefly, please. You have about another minute, minister.
Thank you, Presiding Officer.
Annabel Goldie asked whether there was flexibility in bringing charges under the offence of breach of the peace, but one of the benefits of the offence of breach of the peace is its flexibility. She also raised the issue of sending material that is likely to corrupt or deprave. That issue is worthy of further consideration and we will look into it. Other members raised the issue of age limits, which we will have to look at again.
The debate was interesting; it properly focused on the issue of protecting children and some useful suggestions were made. The members who said that more work needs to be done are right and it is right and proper that we take the issues back for further reflection. Equally, I pose a challenge to members. The last thing that the Executive wants to do is to act with the best of intentions only to find that we have created further complications. The measures in the bill need detailed and careful consideration, and I look forward to a thorough stage 2 consideration.